Kawaso Ltd v Oil Search PNG Ltd (2012) SC1218

• Jurisdiction: Papua New Guinea
• Date: 29 February 2012
• Citation: (2012) SC1218
• Docket Number: SCA 77 OF 2010
• Court: Supreme Court
• Year: 2012

Full Title: SCA 77 OF 2010; Kawaso Ltd v Oil Search PNG Ltd (2012) SC1218

Supreme Court: Gavara—Nanu, Kariko & Logan JJ

Judgment Delivered: 29 February 2012

PRACTICE AND PROCEDURE—default by appellant in complying with court order to answer interrogatories—intentional non-compliance with that order—principles governing appeal against exercise of judicial discretion in respect of matter of practice and procedure—no error of principle in exercise of discretion—appeal dismissed with costs.

Cases Cited:

Papua New Guinea Cases

Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307 cited; Chief Inspector Robert Kalasim v Tangane Koglwa (2006) SC828 cited; Curtain Brothers (PNG) Ltd v UPNG (2005) SC78 cited; Telikom PNG Ltd v ICCC (2008) SC906 cited

Overseas Cases

Attorney-General v Gaskill (1882) 20 Ch D 319 applied; Air Marshal McCormack v Vance [2008] ACTCA 16 cited; Birkett v James [1978] AC 297 not followed; Danvillier v Myer [1883] WN 58 cited; Lyell v Kennedy (1883) 8 App Cas 217cited; Commonwealth of Australia v Lewis [2007] NSWCA 127 cited; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 followed

Legislations Referred to

Supreme Court Act 1975, s14 (3) (b)

National Court Act 1975, s9

National Court Rules 1983, O9 r21 and r25 (1)

REASONS FOR JUDGMENT

29 February, 2012

1. BY THE COURT: On 3 June 2010, upon an application by the respondent, Oil Search (PNG) Ltd (Oil Search) pursuant to O9, r25(1) of the National Court Rules (NCR), the National Court (Hartshorn J), ordered that a proceeding brought in that court by the appellant, Kawaso Ltd (Kawaso) be dismissed in its entirety and that Kawaso pay Oil Search’s costs of and incidental to those proceedings. The basis for those orders was a default by Kawaso in complying with an order made by the National Court on 5 March 2010 requiring it to provide by 17 March 2010 answers to the interrogatories set out in Oil Search’s notice to answer interrogatories dated 3 December 2009.

2. Kawaso has appealed against the order of dismissal. As will be seen, not all of its grounds of appeal engage with that order of dismissal. Further, in the absence of an objection to competency expressly raising the point, we were not called upon to determine whether or not this particular type of order of dismissal is truly to be regarded as final, as opposed to interlocutory. If the latter, a grant of leave to appeal would be required (s14(3)(b), Supreme Court Act 1975, Chapter 37) and, in the absence of such a grant, the appeal would be incompetent. The point not having been raised, we consider that in this particular case the interests of justice are served by proceeding on the assumption that the order made below is to be characterised as a final judgment of the National Court. In so doing, we expressly leave open, as unnecessary in this case to determine, the correctness of that assumption.

3. The grounds of appeal are as follows:

The learned trial Judge erred in law (or mixed fact and law) when His Honour;

3.1. refused the Appellant’s application seeking leave to dispense with the requirements of three (3) clear days service of the Appellant’s Notice of Motion filed on 15 April 2010 short served on the Respondent’s lawyer on 16 April 2010 before the Respondent’s application seeking dismissal of the proceeding was made in that His Honour failed to consider that there were ample reasons justifying a dispensation of the requirements for service as the Appellant’s Notice of Motion seeking leave to file answers to interrogatories was crucial to the entire proceedings which suffered an order for dismissal;

3.2. refused the Appellant’s alternative application to adjourn the matter including the Appellant’s Notice of Motion filed on 15 April 2010 and the Respondent’s Notice of Motion seeking dismissal of the proceeding to a later date to be dealt with concurrently when there were ample reasons advanced justifying an adjournment as the Appellant’s claim was a genuine claim which warranted a full hearing by trial on its merits;

3.3. finding that there were no reasonable excuse for not providing the answers to the interrogatories when there were ample reasons disclosed in that the Managing Director of the Appellant Mr. Kossy Sosoro had been away on very important customary obligations due to a death of a very important member of his clan the late Mr. Kapi Nato and as such the delay in complying with the court order and or directions was not intentional so as to attract a severe consequence of dismissal of the proceeding under O9 r25 National Court Rules;

3.4. finding that the circumstances existed showed a lack of good faith on the part of the Appellant in its compliance with the interrogatory procedure and the court order when there were genuine and ample reasons justifying the delay and as such the dismissal of the proceeding under O9 r25 National Court Rules;

3.5. finding that the circumstances existed showed a lack of good faith on the part of the Appellant and dismissing the entire proceedings when the Respondent and or their lawyers had themselves on more than one occasions failed to comply...